The Mental Capacity Act 2005 and Deprivation of Liberty Safeguards 2009 (MCA/DoLS)
The Mental Capacity Act 2005 covering England and Wales provides a statutory framework for people who lack capacity to make decisions for themselves, or who have capacity and want to make preparations for time when they may lack capacity in the future. It sets out who can take decisions, in which situations, and how they should go about this.
Added to the Act is ‘The Deprivation of Liberty Safeguards’ (DoLS). This is for people who lack the capacity to consent to particular treatment or care that is recognised by others as being in their best interests, or which will protect them from harm.
Where this care might involve depriving vulnerable people of their liberty in either a hospital or a care home, extra safeguards have been introduced, in law, to protect their rights and ensure that care or treatment they receive is in their best interests.
Click here to read a factsheet from Age UK, looking at the Deprivation of Liberty Safeguards which relate to people who lack the mental capacity to make decisions about their care and treatment.
The Mental Capacity Act has set out five statutory principles for us to follow for the person/patient-:
- Always assume the person has capacity unless proved otherwise
- Do not treat someone as incapable of making a decision unless you have taken all practicable steps to help them
- Do not treat someone as incapable of making a decision because their decision may seem eccentric or unwise
- Any acts or decisions made on behalf of people without capacity must be in THEIR best interest
- Before making a ‘best interests’ decision, consider if there is a less restrictive option
By following the MCA/DOLS, hospital staff can ensure that people are deprived of their liberty only when necessary and within the law.
People are entitled to be cared for in the least restrictive way possible and depriving a patient of their liberty should be a last resort after all other options have been explored.
However if the hospital believes that a deprivation of liberty is necessary there is a standard process to follow to ensure that the deprivation of liberty is lawful and the individual is protected.
The Mental Capacity Act also legislates if people wish to plan ahead in the future if/when they lack capacity this includes:
- Lasting Powers of Attorney
- Advance Decisions to Refuse Treatment
- Making a Advance Statement of Preference
A new role was created within the MCA 2005 called a Independent Mental Capacity Advocate (IMCA):
This role helps any person who lacks capacity and has no living family, carers or friends and a specific decision needs to be made for a patient.
This would include serious medical treatment, long stay hospital care for four weeks or more and proposed accommodation change for a patient i.e move to a nursing home.
